Brunei 142-144 i

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					142   Brunei

      Chamber of commerce:                                                   Arbitration Association of Brunei Darussalam
      Brunei International Chamber of Commerce and Industry                  PO BOX 354
      PO Box 2285                                                            BS 8670 Bandar Seri Begawan
      1922 Bandar Seri Begawan                                               Brunei Darussalam
      Brunei Darussalam                                                      Tel:     +673 2 423 871
      Tel:      +673 2 236 601                                               Fax:     +673 2 423 870
      Fax:      +673 2 228 389

      Colin Ong                                                              regulate financial exchanges, dealers and other persons who
      Dr Colin Ong Legal Services                                            provide advice in respect of dealings in securities. Brunei does
      Brunei                                                                 not yet have its own tradable stock exchange, and as such
                                                                             there is no specialized corporate governance code nor any
      Brunei Darussalam was a protectorate of the UK until 1984,             takeover, merger or acquisition code as yet.
      when it obtained full independence and inherited a legal system            The Brunei Companies Act, since its original enactment in
      and judiciary based on the English common law and the struc-           1956, has undergone minor amendments over the years.
      ture of the English court system. However, in a departure from         Shareholders retain the inherent rights to appoint or remove direc-
      the English system, many of the basic and substantive laws of          tors from the board of directors. However, only executive directors
      Brunei, such as contract law, company law, criminal law, defama-       can control day-to-day operations as well as project the future
      tion law, the law of evidence, intellectual property laws and the      directions and guidance for the company. At shareholders’ meet-
      procedural rules of court, are codified in statutes that attempt to     ings, all decisions on the approval of the audit and management
      embody English common law or have been borrowed from other             reports and the company’s annual accounts are made.
      Commonwealth countries, such as Australia, Malaysia and India.             Directors have a duty to act in good faith and in the bona fide
          Where there is any lacuna in the civil and commercial laws of      best interests of the company, as well as to perform their fidu-
      Brunei, the principles and rules laid down by English common           ciary duties to the best of their skills and abilities. They may not
      law on identical matters are referred to as persuasive guidance.       make secret profits nor perform any ultra vires acts beyond the
      Procedural matters and rules of the higher courts in Brunei are        scope and powers that they have been endowed with by the
      dealt by the Supreme Court Act (CAP 5) and its corresponding           shareholders and under the law.
      Rules, with the most recent revision in 2001. In practice, the judi-       The Securities Order regulates all persons involved in dealing
      ciary and lawyers also rely upon the 1999 version of the English       with securities, which has been very broadly defined to encapsu-
      Supreme Court Practice for guidance on the interpretation of the       late most forms of financial instruments as well as dealings in
      Orders and Rules of the Brunei Supreme Court Act, where they           currencies and commodities. The Securities Order allows the
      are materially the same as the English ones. The process of liti-      Authority great powers in monitoring all records maintained for
      gation and time taken for a case to reach trial is reasonable and      such dealings in securities.
      might take anywhere between six and 18 months to reach trial               Brunei does not impose any form of income tax or service tax
      stage.                                                                 on personal individuals, including sole proprietorship and part-
          The Brunei government retains a statutory immunity from            nerships. For corporate tax, the Income Tax (Amendment) Order
      being sued before the courts, so there has been a culture of par-      2001 allows deduction of taxes for companies involved in export
      ties agreeing to arbitration clauses to be used in place of choice-    market development expenditure as well as deduction of taxes
      of-jurisdiction clauses. The Brunei Arbitration Act 1994 (CAP          for companies that have spent money on research and develop-
      173) expressly allows both awards given in domestic Brunei             ment. There have also been arrangements made between Brunei
      arbitrations and awards given by way of international arbitrations     and other countries to provide for tax relief from double taxation
      given under conditions of the New York Convention 1958. The            for individuals and companies.
      Arbitration Association of Brunei Darussalam is the arbitration            The Electronic Transactions Order 2000 gives statutory pro-
      body in Brunei. It counts amongst its members the leading fig-          vision for the recognition of formation of contracts by way of
      ures in various professional disciplines, including architects,        offer and the acceptance of an offer expressed by means of
      engineers, quantity surveyors, lawyers and other prefessionals         electronic record, and is aimed at improving the efficiency of
      from Brunei and overseas.                                              electronic communications and at eliminating barriers to elec-
                                                                             tronic commerce resulting from traditional uncertainties over
      Corporate governance                                                   writing and signature requirements.
      The primary sources of corporate governance in Brunei                      The Investment Incentives Order 2001 was enacted to
      Darussalam are to be found in the Companies Act and the                assist in the diversification of the economy of Brunei and to
      Securities Order 2001, which was enacted to manage and                 attract foreign direct investment into Brunei.

                                                                                                                              2006 EDITION
                                                                                                                       Brunei            143

Corporate and commercial                                           forming loan portfolios for the national asset management
                                                                   company of a neighbouring country.
Recommended firms                                                       Due to the strong litigation backgrounds of Colin Ong and
Tier 1                                                             Madam Rokiah Swed – the latter being a former senior registrar
D F Abang Zen                                                      of the Supreme Court – the firm often appears on the largest and
Dr Colin Ong Legal Services                                        highest-profile commercial litigation matters. Managing partner
Tier 2                                                             Colin Ong’s impressive list of qualifications include being the only
Abrahams Davidson & Co                                             qualified and practising commercial arbitrator in Brunei, an arbi-
Daud Ismail & Co                                                   trator in eight countries and a barrister at Essex Court Chambers
S Ong & Hale                                                       in London. He is regularly consulted on high-profile disputes and
Tier 3                                                             arbitrations in Malaysia and Singapore, and also provides advice to
Ahmad Isa & Partners                                               regional quasi-government bodies.
CCW Partnership
K Lim & Co                                                         Leading lawyer
YC Lee & Company                                                   Colin Ong

D F Abang Zen                                                      Key contact partner
D F Abang Zen is a four-lawyer practice led by name partner        Colin Ong
Ferida Abang Zen, a highly respected senior practitioner in
the Brunei legal market. Although there have been some             Abrahams Davidson & Co
comments that Abang Zen has been less visible of late, the         At three partners and seven associates, Abrahams Davidson &
firm continues to be engaged across transactions ranging from      Co is the largest firm in the Brunei market. The broad-ranging
an intellectual property test case to inheritance rights under     experience of its professionals (including legal experience in
Sharia law.                                                        Malaysia and Singapore) means that the firm is able to act on a
    In the corporate area, D F Abang Zen has been involved in      wide variety of commercial transactions, including convention-
advising a Brunei company in connection with a government-         al and Islamic banking, financial products including derivatives,
awarded project valued at over Br$4 million ($2.4 million), and    funds documentation, joint ventures, property matters, corpo-
won a role acting on a cooperation agreement with                  rate litigation matters, telecommunications and information
Singaporean engineering company MPL Pte. Securing the              technology work and other corporate work.
Radio Television Brunei Centre for Broadcasting                        The market has high regard for senior partner James Chiew,
Development as a client has allowed the firm to branch out          who previously held positions in the government and the judi-
into entertainment and media law, advising on and preparing        ciary. Several of the firm’s lawyers are qualified as barristers in
documentation for overseas location filming.                        Brunei and England.
    Partner Chu Wee Ken is noted for her intellectual property
expertise, and was appointed in May 2005 by the Brunei             Key contact partner
Attorney General’s Chambers as a national consultant. Chu has      Tan Suan Chin
also been endorsed by the World Intellectual Property
Organization for one of its sponsored projects in the Asean        CCW Partnership
region.                                                            CCW Partnership’s six-lawyer outfit is one of the larger firms
                                                                   in Brunei and is led by the experienced and respected Andrew
Leading lawyer                                                     Ong. A recent highlight for the firm has been its role alongside
Ferida Abang Zen                                                   Rajah & Tann and KPMG Business Advisory in respect of the
                                                                   development of a new licensing and regulatory framework for
Key contact partners                                               Brunei’s telecommunications industry.
Ferida Abang Zen
Chu Wee Ken                                                        Key contact partner
                                                                   Andrew Ong
Dr Colin Ong Legal Services
Dr Colin Ong Legal Services remains in the first tier due to a      K Lim & Company
well-developed combination of local and international exper-       Founded in 2001, K Lim & Company is a relatively young firm,
tise. The firm has a reputation for strong foreign direct invest-   but partners Kelvin Lim and Adrian Chan are rapidly develop-
ment and banking capabilities. However, as a result of a gener-    ing a name for themselves, and the firm enters the rankings for
al slowdown in local transaction work, the firm been increas-       the first time based on market recommendation. In building
ingly involved in cross-border work, such as advising on           their practice, Lim and Chan have been able to draw upon their
regional and worldwide equity funds covering Asean countries.      collective wealth of legal experience locally and in Malaysia,
The firm has also advised on the restructuring of non-per-          Australia and New Zealand.

144   Brunei

         The firm’s main practice areas are banking and finance, com-
      mercial litigation, corporate advisory, insurance and shipping
      and securities. Clients include domestic and international banks,
      international trust companies, insurance companies, foreign
      missions, property developers, cigarette companies and motor
      vehicle distributors.

      Key contact partners
      Adrian Chan
      Kelvin Lim

      Foreign firms
      None of the international firms has offices in Brunei, but they
      conduct work in the country when it forms part of a wider
      international transaction or where foreign legal expertise is
      required for complex Brunei work.
          Freshfields Bruckhaus Deringer and Milbank Tweed
      Hadley & McCloy acted on the complex recapitalization of a
      leveraged buyout by AB Investor of Sweden across 12 jurisdic-
      tions, including Brunei. Clifford Chance represented Mitsui
      Sumitomo Insurance on its acquisition of Aviva’s non-life oper-
      ations in several Asian countries (including Brunei). Aviva was
      represented by Allen & Overy.
          Norton Rose has been acting for the sponsors for the $800
      million ammonia and urea plant project in Brunei, which is
      notable for being the first onshore project financing in the
      country. Linklaters is acting for Brunei Shell Petroleum on the
      same transaction.
          In terms of regulatory work, Lovells is part of a special legal
      panel selected by the Brunei Economic Development Board for
      the development of the Sungei Liang industrial park and the
      Pulau Muara Besar global port, and has started work on special
      purpose legislation for the project. Lastly, the Authority for
      Info-communications Technology Industry of Brunei
      Darussalama (AiTi) appointed Rajah & Tann to help formulate
      a new licensing regime for the telecommunications industry.

                                                                            2006 EDITION

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